Children Legislation Amendment (Wood Inquiry ... · Act No 13, 2009 Children Legislation Amendment (Wood Inquiry Recommendations) Act 2009 No 13 New South Wales An Act to amend the

Contents

New South Wales

Children Legislation Amendment (Wood Inquiry Recommendations) Act 2009 No 13

Page1 Name of Act 22 Commencement 23 Repeal of Children (Care and Protection) Act 1987 No 54 2

Schedule 1 Amendment of Children and Young Persons (Care and Protection) Act 1998 No 157 3

1.1 Amendments relating to recommendations 6.2 and 10.1 31.2 Amendments relating to recommendations 11.1 and 11.3 61.3 Amendments relating to recommendations 11.1 (xvii) and

16.16 (i) and (viii) 151.4 Amendments relating to recommendation 16.16 (ii)–(vii) 251.5 Amendment relating to recommendations 24.1 and 24.6 261.6 Other miscellaneous or consequential amendments 30

Schedule 2 Amendments relating to recommendations 11.2, 13.1, 13.3, 13.4, 13.9 and 13.12 31

2.1 Amendment of Children and Young Persons (Care and Protection) Act 1998 No 157 31


Contents

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2.2 Amendment of Children’s Court Act 1987 No 53 322.3 Amendment of Constitution Act 1902 No 32 382.4 Amendment of Judicial Officers Act 1986 No 100 382.5 Amendment of Statutory and Other Offices

Remuneration Act 1975 (1976 No 4) 382.6 Amendment of Children’s Court Rule 2000 39

Schedule 3 Amendments relating to recommendations 23.3, 23.4and 23.8 40

3.1 Amendment of Commission for Children and YoungPeople Act 1998 No 146 40

3.2 Amendment of Community Services (Complaints,Reviews and Monitoring) Act 1993 No 2 45

3.3 Amendment of Children and Young Persons (Care and Protection) Act 1998 No 157 46

3.4 Amendment of Children’s Services Regulation 2004 47

Note. A reference to a recommendation in a heading to a Schedule orsubschedule to this Act is a reference to a recommendation as set outin the Report of the Special Commission of Inquiry into Child ProtectionServices in NSW (November 2008).

Contents page 2

Act No 13, 2009


New South Wales

An Act to amend the Children and Young Persons (Care and Protection) Act 1998and other legislation to give effect to recommendations of the Special Commissionof Inquiry into Child Protection Services in NSW; and for other purposes. [Assentedto 7 April 2009]

Children Legislation Amendment (Wood Inquiry Recommendations) Act 2009 No 13Section 1

The Legislature of New South Wales enacts:

1 Name of ActThis Act is the Children Legislation Amendment (Wood InquiryRecommendations) Act 2009.

2 CommencementThis Act commences on a day or days to be appointed by proclamation.

3 Repeal of Children (Care and Protection) Act 1987 No 54The Children (Care and Protection) Act 1987 is repealed.

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Amendment of Children and Young Persons (Care and Protection) Act 1998 No 157

Schedule 1

Schedule 1 Amendment of Children and Young Persons (Care and Protection) Act 1998 No 157

1.1 Amendments relating to recommendations 6.2 and 10.1[1] Section 23 Child or young person at risk of significant harm

Omit “at risk of harm”. Insert instead “at risk of significant harm”.

[2] Section 23Insert “, to a significant extent,” after “because of the presence”.

[3] Section 23 (b1)Insert after section 23 (b):

(b1) in the case of a child or young person who is required toattend school in accordance with the Education Act1990—the parents or other caregivers have not arrangedand are unable or unwilling to arrange for the child oryoung person to receive an education in accordance withthat Act,

[4] Section 23 (2)Insert at the end of section 23:

(2) Any such circumstances may relate to a single act or omission orto a series of acts or omissions.Note. See also sections 154 (2) (a) and 156A (3) for other circumstancesin which a child or young person is taken to be at risk of significant harm.

[5] Sections 24, 25 (including the note), 27 (2) and (3) (b), 30 and 31 Omit “at risk of harm” wherever occurring.Insert instead “at risk of significant harm”.

[6] Section 27 Mandatory reportingOmit “the person must, as soon as practicable, report to” from section 27 (2).Insert instead “it is the duty of the person to report, as soon as practicable, to”.

[7] Section 27 (2)Omit the penalty at the end of the subsection.

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[8] Section 27AInsert after section 27:

27A Alternative reporting arrangements(1) In this section:

assessment officer, in relation to a relevant agency, means aperson appointed or designated by the head of the agency as anassessment officer of the agency for the purposes of anarrangement under this section.head of a relevant agency means:(a) (subject to paragraph (b)) the person who is the chief

executive officer, or who exercises the functions of chiefexecutive officer, of the agency, or

(b) the person prescribed by the regulations.relevant agency means any of the following:(a) the NSW Health Service (including the Health Executive

Service referred to in section 121B of the Health ServicesAct 1997),

(b) the NSW Police Force,(c) the Teaching Service,(d) the Department of Health,(e) the Department of Education and Training,(f) the TAFE Commission Division (including the TAFE

Commission),(g) the Department of Juvenile Justice,(h) the Department of Ageing, Disability and Home Care,(i) Housing NSW,(j) any other agency or organisation prescribed by the

regulations for the purposes of this section.(2) The Director-General and the head of a relevant agency may

enter into an arrangement under which a person (the staffmember) who:(a) is employed in or engaged by the relevant agency, and (b) is a person to whom section 27 applies,may, in accordance with the terms of the arrangement, refer to anassessment officer of the agency any matter that the staff memberwould otherwise be required to report to the Director-Generalunder that section.

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(3) If the staff member refers such a matter to an assessment officerunder any such arrangement, the assessment officer is, inaccordance with the assessment guidelines issued by theDirector-General for the purposes of this section, to assesswhether the matter should be reported to the Director-Generalunder section 27.

(4) If, in accordance with the assessment guidelines, the matter isassessed as a matter that should be reported to theDirector-General under section 27, the assessment officer or thestaff member is, as soon as practicable after the assessment, toreport the matter to the Director-General under that section. Anysuch requirement applies in relation to the assessment officer asthough the officer was a person to whom section 27 applies.

(5) If, in accordance with the assessment guidelines, the matter isassessed as a matter that should not be reported to theDirector-General under section 27, the assessment officer or thestaff member may, if the officer or staff member has concerns forthe well-being of the child to whom the matter relates, make suchreferral or take such action as the officer or staff memberconsiders necessary or appropriate (or as is reasonably available)to safeguard or promote the safety, welfare and well-being of thechild.

(6) If a matter is referred to an assessment officer in accordance withan arrangement under this section, the staff member making thereferral is taken to have satisfied his or her obligations undersection 27 in relation to the matter concerned.

(7) Section 29 applies in relation to a referral that is made to anassessment officer under this section in the same way as it appliesto a report within the meaning of section 29. For that purpose, areference in section 29 to the making of a report includes areference to the referral of a matter to an assessment officer inaccordance with an arrangement under this section.

(8) A certificate purporting to be signed by an assessment officer thata document relating to a child is a referral that has been made tothe assessment officer under this section is admissible in anyproceedings and, in the absence of evidence to the contrary, isproof that the document is such a referral.

(9) The following provisions apply in relation to the appointment ordesignation of assessment officers for the purposes of thissection:(a) more than one person may be appointed or designated as

an assessment officer in relation to a relevant agency,

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(b) any such appointment or designation may (withoutlimitation) be made by reference to the holder of aspecified position or to a specified class of persons,

(c) a person may be appointed or designated as an assessmentofficer in relation to a relevant agency even though theperson is employed in or engaged by another agency.

(10) The regulations may extend the operation of this section, withsuch exclusions and modifications as may be prescribed by theregulations, to any person (or a class of persons) who is a person(or class of persons) to whom section 27 applies but who is or arenot employed in or engaged by a relevant agency.

(11) For avoidance of doubt, the head of the NSW Health Service orthe Health Executive Service is, for the purposes of this section,the Director-General of the Department of Health.

1.2 Amendments relating to recommendations 11.1 and 11.3[1] Section 3 Definitions

Omit the definition of compulsory assistance.

[2] Section 8 What are the objects of this Act?Omit “taking into account the rights, powers and duties” from section 8 (a).Insert instead “having regard to the capacity”.

[3] Section 9Omit the section. Insert instead:

9 Principles for administration of Act(1) This Act is to be administered under the principle that, in any

action or decision concerning a particular child or young person,the safety, welfare and well-being of the child or young personare paramount.

(2) Subject to subsection (1), the other principles to be applied in theadministration of this Act are as follows:(a) Wherever a child or young person is able to form his or her

own views on a matter concerning his or her safety,welfare and well-being, he or she must be given anopportunity to express those views freely and those viewsare to be given due weight in accordance with thedevelopmental capacity of the child or young person andthe circumstances.

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(b) In all actions and decisions made under this Act (whetherby legal or administrative process) that significantly affecta child or young person, account must be taken of theculture, disability, language, religion and sexuality of thechild or young person and, if relevant, those with parentalresponsibility for the child or young person.

(c) In deciding what action it is necessary to take (whether bylegal or administrative process) in order to protect a childor young person from harm, the course to be followed mustbe the least intrusive intervention in the life of the child oryoung person and his or her family that is consistent withthe paramount concern to protect the child or young personfrom harm and promote the child’s or young person’sdevelopment.

(d) If a child or young person is temporarily or permanentlydeprived of his or her family environment, or cannot beallowed to remain in that environment in his or her ownbest interests, the child or young person is entitled tospecial protection and assistance from the State, and his orher name, identity, language, cultural and religious tiesshould, as far as possible, be preserved.

(e) If a child or young person is placed in out-of-home care,arrangements should be made, in a timely manner, toensure the provision of a safe, nurturing, stable and secureenvironment, recognising the child’s or young person’scircumstances and that, the younger the age of the child,the greater the need for early decisions to be made inrelation to a permanent placement.

(f) If a child or young person is placed in out-of-home care,the child or young person is entitled to a safe, nurturing,stable and secure environment. Unless it is contrary to hisor her best interests, and taking into account the wishes ofthe child or young person, this will include the retention bythe child or young person of relationships with peoplesignificant to the child or young person, including birth oradoptive parents, siblings, extended family, peers, familyfriends and community.

[4] Section 18 Obligation to co-operateInsert “, or the non-government agency,” after “agency”.

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[5] Section 18 (2)Insert at the end of section 18:

(2) Subsection (1) does not, in the case of a non-government agencyin receipt of government funding, limit any obligation imposedon the agency in accordance with the agreement under which itreceives that funding.

[6] Section 21 Request for assistance by parent of child or young person or by funded non-government agencyInsert at the end of the section (before the note):

(2) Without limiting subsection (1), a non-government agency inreceipt of government funding may, on behalf of a child or youngperson in respect of whom the agency provides services inaccordance with the agreement under which it receives thatfunding, seek assistance from the Director-General in order toobtain other services for the child or young person.


22 Director-General’s response to requests for assistance(1) If a person or non-government agency seeks assistance from the

Director-General under this Part (whether or not a child or youngperson is suspected of being in need of care and protection), theDirector-General must:(a) provide whatever advice or material assistance, or make

such referral, as the Director-General considers necessary,or

(b) take whatever other action the Director-General considersnecessary,

to safeguard or promote the safety, welfare and well-being of thechild or young person.

(2) Subsection (1) does not, however, require the Director-General totake any action other than assessing the request for assistance.Note. The Director-General, in responding to a request for assistance,can provide services or arrange for other government departments andagencies, or community organisations, to provide services to assistchildren, young persons and their families.The Department may also play a role in referring people to servicesprovided under Commonwealth legislation, such as Family Courtcounselling and access to maintenance entitlements or other benefits.

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Schedule 1


28 Record of reports and subsequent action The Director-General must keep a record of:(a) any report made to the Director-General, and(b) any action taken as a direct consequence of the report that

has a significant effect on the child or young person towhom the report relates.

[9] Section 29 Protection of persons who make reports or provide certain informationInsert after section 29 (4):

(4A) Subsection (1) (f) also does not prevent the disclosure to a lawenforcement agency of the identity of the person who made thereport (the reporter), or information from which the identity ofthe reporter could be deduced, if:(a) the identity of the reporter, or the information, is disclosed

in connection with the investigation of a serious offencealleged to have been committed against a child or youngperson, and

(b) the disclosure is necessary for the purposes ofsafeguarding or promoting the safety, welfare andwell-being of any child or young person (whether or notthe victim of the alleged offence).

(4B) However, subsection (4A) does not apply unless:(a) a senior officer of the law enforcement agency to which the

disclosure is made has, before the disclosure is made,certified in writing that obtaining the reporter’s consentwould prejudice the investigation of the serious offenceconcerned, or

(b) the person or body that makes the disclosure has, beforemaking the disclosure, certified in writing that it isimpractical to obtain the consent of the reporter.

(4C) The person or body that discloses to a law enforcement agencythe identity of the reporter, or the information from which theidentity of the reporter could be deduced, is required to notify thereporter of the disclosure unless:(a) it is not reasonably practicable in the circumstances to do

so, or

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(b) the law enforcement agency to which the disclosure ismade has advised the person or body that notifying thereporter would prejudice the investigation of the seriousoffence concerned.

[10] Section 29 (6)Insert in alphabetical order:

law enforcement agency means any of the following:(a) the NSW Police Force,(b) the Australian Federal Police,(c) the police force of another State or Territory,(d) a person or body prescribed by the regulations for the

purposes of this definition.senior officer means:(a) in relation to the NSW Police Force—a commissioned

police officer within the meaning of the Police Act 1990,or

(b) in relation to any other law enforcement agency—a person(or class of persons) prescribed by the regulations as asenior officer of the agency.

[11] Section 58 Provision of assessment reports and other informationOmit “or unwilling” wherever occurring.

[12] Section 58 (3)–(5)Insert after section 58 (2):

(3) The Children’s Court may, of its own motion, order:(a) the Children’s Court Clinic, or(b) a person appointed under subsection (2),to provide the Court with such other information as may bewithin the expertise of the Children’s Court Clinic or theappointed person (as the case requires) to provide.

(4) The Children’s Court may order the Children’s Court Clinic toprovide any such information regardless of whether anassessment order has been made in relation to the child or youngperson concerned.

(5) Any information provided to the Children’s Court pursuant to anorder under subsection (3) is taken to be a report to the Children’sCourt rather than evidence tendered by a party.

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Schedule 1


65A Referral of matters before the Court to ADR(1) The Children’s Court may make an order that the parties to a care

application attend an alternative dispute resolution service inrelation to the proceedings before the Court or any aspect of thoseproceedings.

(2) The Children’s Court may make an order under this section:(a) on its own initiative, or(b) on the application of a party to the proceedings.

[14] Section 71 Grounds for care ordersOmit “any of the following reasons” from section 71 (1).Insert instead “any reason including, without limitation, any of the following”.

[15] Section 71 (1A)Insert after section 71 (1):

(1A) If the Children’s Court makes a care order in relation to a reasonnot listed in subsection (1), the Court may only do so if theDirector-General pleads the reason in the care application.

[16] Section 71A Effect of conduct outside New South WalesOmit “referred to in”. Insert instead “for the purposes of”.

[17] Section 78 Care plansInsert “in general terms” after “relates” in section 78 (2) (b) (i).

[18] Section 78A Permanency planningOmit “section 9 (f)” from section 78A (1) (a). Insert instead “section 9 (2) (e)”.

[19] Section 78A (2A)Insert after section 78A (2):

(2A) A permanency plan need not provide details as to the exactplacement in the long-term of the child or young personconcerned but must be sufficiently clear and particularised so asto provide the Children’s Court with a reasonably clear picture asto the way in which the child’s or young person’s needs, welfareand well-being will be met in the foreseeable future.

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[20] Section 79 Order allocating parental responsibilityOmit “section 9 (d)” from section 79 (3). Insert instead “section 9 (2) (c)”.

[21] Section 79 (5)Insert after section 79 (4):

(5) The Children’s Court may only make an order that allocatesparental responsibility for a child or young person to a designatedagency if the designated agency (or principal officer of theagency) is the person specified in an emergency care andprotection order made under section 46 in respect of the child oryoung person.


82 Report on suitability of arrangements concerning parental responsibility(1) The Children’s Court may, when making an order in any care

proceedings (the relevant proceedings) allocating parentalresponsibility of a child or young person to a person (includingthe Minister) other than a parent, order a party to the relevantproceedings to prepare a written report concerning the suitabilityof the arrangements for the care and protection of the child oryoung person.

(2) The report must:(a) be provided to the Children’s Court within 12 months or

such earlier period as the Court may specify, and(b) include an assessment of progress in implementing the

care plan, including progress towards the achievement of apermanent placement, and

(c) unless the Court orders otherwise, be given to each of theother parties to the relevant proceedings.

(3) If, after considering the report, the Children’s Court is notsatisfied that proper arrangements have been made for the careand protection of the child or young person concerned, the Courtis, within 30 days of receiving the report, to notify each party tothe relevant proceedings inviting the party to make an applicationunder section 90 in relation to the order. Any such applicationmust be made within 30 days of the party being notified by theCourt.

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Schedule 1

(4) The Children’s Court cannot, however, rescind or vary the order,or make a new order allocating parental responsibility, on its ownmotion.

(5) Subsection (3) does not limit the circumstances in which a partyto the relevant proceedings may make an application undersection 90.

[23] Section 83 Preparation of permanency planInsert after section 83 (7):

(7A) For the purposes of subsection (7) (a), the permanency plan neednot provide details as to the exact placement in the long term ofthe child or young person to whom the plan relates but mustprovide the further and better particulars which are sufficientlyidentified and addressed so the Court, prior to final orders beingmade, can have a reasonably clear plan as to the child’s or youngperson’s needs and how those needs are going to be met.

[24] Section 86 Contact ordersInsert after section 86 (1):

(1A) The Children’s Court may make an order of the kind referred toin subsection (1) (a) only if:(a) it is made as an interim order pending the conclusion of the

proceedings, or(b) the Court has, under section 83, approved a permanency

plan involving restoration in relation to that child or youngperson.

[25] Section 86 (5) and (6)Insert after section 86 (4):

(5) The regulations may make provision for or with respect to thereferral, to alternative dispute resolution services, of disputesarising out of contact between a child or young person who is inout-of-home care and his or her parents or other family members.

(6) Any such regulation is to apply only in relation to matters inrespect of which the Children’s Court does not have power tomake a contact order under this section.

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[26] Section 90 Rescission and variation of care ordersInsert before section 90 (3) (c):

(b1) the child or young person, or

[27] Section 90 (2A) (f):Insert at the end of section 90 (2A) (e):

, and(f) matters concerning the care and protection of the child or

young person that are identified in:(i) a report under section 82, or

(ii) a report that has been prepared in relation to areview directed by the Children’s Guardian undersection 85A or in accordance with section 150.

[28] Chapter 7, Part 3 Compulsory assistanceOmit the Part.

[29] Sections 149B (2) and 231M (d)Omit “section 9 (g)” wherever occurring. Insert instead “section 9 (2) (f)”.

[30] Section 231E Director-General to have regard to certain mattersOmit section 231E (a). Insert instead:

(a) the principles in section 9, and

[31] Sections 231J (2) (a) and 231M (a)Omit “matters referred to” wherever occurring. Insert instead “principles”.


248A Collection of information by Director-General and Children’s Court(1) The regulations may make provision for or with respect to the

collection by the Director-General or the Children’s Court ofsuch information (or such classes of information) as may beprescribed by the regulations.

(2) Without limiting subsection (1), the regulations may require theDirector-General or the Children’s Court:(a) to collect any such information, and

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Schedule 1

(b) to keep any such information that is collected by, or that isprovided to, the Director-General or the Children’s Court,and

(c) to make any such information publicly available, and(d) to provide any such information to the Minister.

(3) Nothing in this or any other Act prevents the Director-General orthe Children’s Court from doing anything in accordance with theregulations made under this section.

[33] Section 250 Delegation by Director-GeneralOmit section 250 (1) (b).

1.3 Amendments relating to recommendations 11.1 (xvii) and 16.16 (i) and (viii)

[1] Sections 13 (1) and 16 (3) (b)Insert “statutory” before “out-of-home care” wherever occurring.

[2] Section 14 Records relating to Aboriginals and Torres Strait IslandersInsert “statutory or supported” before “out-of-home care” wherever occurringin section 14 (1) and (2).

[3] Section 134 Objects of this ChapterOmit section 134 (c) and the note at the end of the section. Insert instead:

(c) to clarify the roles and responsibilities of those involved inthe provision of out-of-home care.

[4] Sections 135–135COmit section 135. Insert instead:

135 Definition and types of “out-of-home care”(1) For the purposes of this Act, out-of-home care means residential

care and control of a child or young person that is provided:(a) by a person other than a parent of the child or young

person, and(b) at a place other than the usual home of the child or young

person,whether or not for fee, gain or reward.

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(2) There are 3 types of out-of-home care for the purposes of thisAct, as follows:(a) statutory out-of-home care—see section 135A,(b) supported out-of-home care—see section 135B,(c) voluntary out-of-home care—see section 135C.

(3) For the purposes of this Act, out-of-home care does not include:(a) daily care and control of a child given by a person in the

person’s capacity as a licensed provider of children’sservices, or

(b) any care provided by a relative of a child or young personunless:(i) the Minister has parental responsibility for the child

or young person by virtue of an order of theChildren’s Court, or

(ii) the child or young person is in the care of theDirector-General, or

(iii) it is provided pursuant to a supported out-of-homecare arrangement as referred to in section 153, or

(c) anything prescribed by the regulations not to beout-of-home care.

(4) However, a child or young person who is in out-of-home caredoes not cease to be in that care merely because the child oryoung person becomes subject to any care or control referred toin subsection (3).

135A Statutory out-of-home care(1) Statutory out-of-home care is out-of-home care that is provided

in respect of a child or young person for a period of more than 14days:(a) pursuant to a care order of the Children’s Court, or(b) by virtue of the child or young person being a protected

person.(2) Any statutory out-of-home care provided in respect of a child or

young person is taken to commence:(a) immediately on the making of a care order for a period of

more than 14 days in respect of the child or young person,or

(b) in any other case—immediately the child or young personis placed with an authorised carer.

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(3) In this section, protected person means:(a) a person who is a ward of the Supreme Court, or subject to

an order of the Supreme Court in its parens patriaejurisdiction, and of whom the Minister or theDirector-General has the custody or care pursuant to anorder of the Supreme Court, or

(b) a person who is under the parental responsibility of theDirector-General pursuant to Part 6 (Parentalresponsibility for children awaiting adoption) of Chapter 4of the Adoption Act 2000, or

(c) a person in respect of whom the Minister or theDirector-General has parental responsibility, either whollyor partially, pursuant to an order in force under the FamilyLaw Act 1975 of the Commonwealth, or

(d) a person who, having been a person referred to inparagraph (a), (b) or (c), was in the custody of a personreferred to in section 91 (1) (d) (i) or (ii) of the Children(Care and Protection) Act 1987 immediately before itsrepeal.

135B Supported out-of-home careSupported out-of-home care is out-of-home care in respect of achild or young person that is, as a result of the Director-Generalforming the opinion that the child or young person is in need ofcare and protection, arranged, provided or otherwise supportedby the Director-General under Part 3 of this Chapter.

135C Voluntary out-of-home careVoluntary out-of-home care is out-of-home care in respect of achild or young person that is arranged by a parent of the child oryoung person in the manner referred to in section 156A.


136 Restriction on who may provide statutory out-of-home care(1) Statutory out-of-home care may be provided in respect of a child

or young person only by an authorised carer.

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(2) A person, other than an authorised carer, who provides statutoryout-of-home care in respect of a child or young person is guiltyof an offence.Maximum penalty (subsection (2)): 200 penalty units.Note. The provision of supported or voluntary out-of-home care isregulated by Parts 3 and 3A of this Chapter.

(3) This section does not prevent a child or young person who:(a) has been placed in statutory out-of-home care, and(b) is the subject of a permanency plan involving restoration,from living with his or her parents, in accordance with thearrangements under a care plan approved by the Children’sCourt, at any time during the period of 6 months before the dateon which the child or young person is to be restored to his or herparents in accordance with the permanency plan.

[6] Section 137 Authorised carersInsert after section 137 (1):

(1A) If, in relation to a child or young person who is the subject of acare order, the Children’s Court has accepted that there is norealistic possibility of the child or young person being restored tohis or her parents, a parent of the child or young person cannot:(a) be given care responsibility for the child or young person,

or(b) be authorised by a designated agency as an authorised

carer in respect of the child or young person,unless the decision of the Court that there is no possibility ofrestoration is rescinded under section 90.

[7] Section 138 Persons who may arrange for provision of statutory or supported out-of-home careInsert “statutory or supported” before “out-of-home care” wherever occurring.

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[8] Chapter 8, Parts 3 and 3AOmit Part 3. Insert instead:

Part 3 Supported out-of-home care

Division 1 Temporary care arrangements151 Making of temporary care arrangements

(1) The Director-General may make a temporary care arrangement inrespect of a child or young person if the child or young person is,in the opinion of the Director-General, in need of care andprotection.

(2) The Director-General:(a) has the care responsibility of a child or young person who

is the subject of a temporary care arrangement, and(b) may delegate that care responsibility only to an authorised

carer.(3) The Director-General must not, in the case of a child, make a

temporary care arrangement in respect of the child unless:(a) a parent of the child consents to the arrangement and a

permanency plan involving restoration is in place inrelation to the child, or

(b) the parents of the child are, in the opinion of theDirector-General, incapable of consenting to thearrangement.

(4) The regulations may make provision for or with respect totemporary care arrangements under this Division.

152 Duration, renewal and review of temporary care arrangements(1) A temporary care arrangement ceases to be in force:

(a) on the receipt by the Director-General of a request for thetermination of the arrangement made by the person bywhom the application for the making of the arrangementwas made, or

(b) on the child or young person the subject of the arrangementattaining the age of 18 years, or

(c) on the expiration of the period of:(i) except as provided by subparagraph (ii)—3 months,

or

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(ii) if the Director-General has renewed thearrangement pursuant to subsection (2)—6 months,

after the making of the arrangement, or(d) on its termination by the Director-General under

subsection (5),whichever first occurs.

(2) At the expiration of 3 months after the making of a temporarycare arrangement in respect of a child or young person, theDirector-General may, if of the opinion that the child or youngperson is still in need of care and protection, renew thearrangement for a further period of 3 months.

(3) Section 151 applies to the renewal of a temporary carearrangement in the same way as it applies to the making of suchan arrangement.

(4) A temporary care arrangement cannot be:(a) made or renewed in respect of a child or young person if

the child or young person has, during the previous 12months, been the subject of a temporary care arrangementfor a period, or for periods in the aggregate, exceeding 6months, or

(b) renewed in respect of a child or young person if thetemporary care arrangement was made in thecircumstances described in section 151 (3) (b).

(5) The Director-General may, whether on the application of thechild or young person, or a parent of the child or young person,or on the Director-General’s own motion, terminate a temporarycare arrangement in respect of a child or young person if:(a) the Director-General is of the opinion that the child or

young person is no longer in need of care and protection, or(b) a care application is made in respect of the child or young

person.(6) An application for the review of a temporary care arrangement

may, in accordance with the regulations, be made to theChildren’s Court:(a) by or on behalf of the child or young person the subject of

the arrangement, or(b) by a person having parental responsibility for the child or

young person.

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(7) The decision of the Children’s Court in respect of an applicationfor a review is to be given effect to as if it were the decision ofthe Director-General with respect to the making of a temporarycare arrangement under section 151.

Division 2 Other supported out-of-home care arrangements

153 Operation of other arrangements(1) The Director-General may provide support in respect of the

placement of a child or young person in out-of-home care that hasbeen arranged otherwise than under a temporary carearrangement as referred to in Division 1.

(2) If a child or young person has been placed in out-of-home careunder any such other arrangement supported by theDirector-General, the child or young person must not remain inthe out-of-home care provided under the arrangement for a periodin excess of 21 days unless the designated agency havingsupervisory responsibility for the child or young person issatisfied, following appropriate assessment, that the child oryoung person is unable to remain with his or her parent orparents.

(3) Within 7 days after the expiration of the 21-day period, thedesignated agency must:(a) develop and implement a permanency plan involving

restoration, or(b) develop a care plan,in respect of the child or young person.

Division 3 General provisions154 Restriction on who may provide supported out-of-home care

(1) Supported out-of-home care may be provided in respect of a childor young person only by the Director-General or an authorisedcarer.

(2) If a person, other than the Director-General or an authorisedcarer, provides out-of-home care in respect of a child or youngperson:(a) the child or young person is, for the purposes of Parts 2 and

3 of Chapter 3, taken to be at risk of significant harm, and

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(b) the Director-General may direct the person, by notice inwriting, to cease providing the out-of-home care within thetime specified in the notice.

(3) A person who fails to comply with a notice given to the personunder subsection (2) (b) is guilty of an offence.Maximum penalty: 200 penalty units.

155 Review of supported out-of-home care arrangements(1) If a child or young person has been in supported out-of-home care

for a period, or for periods in the aggregate, exceeding 3 monthsin any period of 12 months, the designated agency havingsupervisory responsibility for the child or young person mustconduct a review of the out-of-home care arrangements at leastonce in every period of 12 months.

(2) Any such annual review, in considering the needs of the child oryoung person, is to have regard to the following:(a) the number of periods and the total time the child or young

person has spent in supported out-of-home care,(b) the number and outcome of previous reviews of the

supported out-of-home care arrangements,(c) the legal status of the child or young person,(d) the issues that need to be addressed while the child or

young person is in supported out-of-home care, what is tobe done and who is to undertake responsibility,

(e) the responsibilities of all parties concerning care,(f) any special requirements of the child or young person

relating to culture, language, religion or disability,(g) the appropriateness of making a care application.

(3) At the conclusion of the annual review, the designated agency isto determine:(a) whether restoration of the child or young person to family

care is possible and, if not, how the parenting needs of thechild or young person are to be met, and

(b) whether a care application should be made in order toprovide for the reallocation of parental responsibility inrelation to the child or young person.

(4) In addition to the annual review under subsection (1), reviewsconcerning the child or young person are to be conducted by thedesignated agency:

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Schedule 1

(a) within 21 days after the death of the authorised carer, and(b) before a planned change of placement, and(c) within 21 days after an unplanned change of placement.

Part 3A Voluntary out-of-home care156 Preliminary

(1) In this Part:relevant agency means:(a) a designated agency, or(b) any other organisation that provides out-of-home care in

respect of children or young persons and that is registeredfor the time being by the Children’s Guardian for thepurposes of this Part.

(2) The regulations may make provision for or with respect to:(a) voluntary arrangements under this Part for out-of-home

care, and(b) the registration of organisations for the purposes of this

Part.

156A Voluntary arrangements for out-of-home care(1) A parent of a child or young person may make an arrangement

with a relevant agency for the child or young person to be placedin out-of-home care that is provided or arranged by the agency.Any such arrangement is referred to in this section as a voluntaryarrangement.Note. Section 172A prohibits parents from placing children or youngpersons in out-of-home care that is provided or arranged byorganisations that are not relevant agencies.

(2) If a child or young person is placed in out-of-home care under avoluntary arrangement:(a) the child or young person must not remain in out-of-home

care for more than 3 months in any period of 12 monthsunless the care is provided by, or is under the supervisionof, a designated agency, and

(b) the child or young person must not remain in out-of-homecare for more than 180 days in any period of 12 monthsunless the designated agency responsible for the child oryoung person has, in accordance with the guidelines issuedby the Children’s Guardian for the purposes of this section,

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prepared a plan that meets the needs of the child or youngperson under the arrangement.

(3) If subsection (2) is not complied with in relation to the provisionof out-of-home care under a voluntary arrangement, the child oryoung person to whom the arrangement applies is, for thepurposes of Parts 2 and 3 of Chapter 3, taken to be at risk ofsignificant harm.

(4) The Children’s Guardian is to formulate intake procedures andprocedures relating to assessments and inter-agencyco-ordination in order to ensure:(a) that children and young persons are not placed in

out-of-home care under a voluntary arrangement ifadequate services can be provided to enable them toremain with their families, and

(b) that proper case planning occurs for all children and youngpersons placed in any such out-of-home care.

[9] Chapter 8, Part 5, headingInsert “statutory or supported” before “out-of-home care”.

[10] Section 159AInsert before section 159:

159A Part applies to statutory and supported out-of-home care onlyA reference is this Part to out-of-home care is a reference only tostatutory or supported out-of-home care.

[11] Section 161 Financial assistance for children and young persons in statutory or supported out-of-home careOmit section 161 (2).

[12] Chapter 8, Part 6, headingInsert “statutory” before “out-of-home care”.

[13] Section 165AInsert before section 165:

165A Part applies to statutory out-of-home care onlyA reference in this Part to out-of-home care is a reference only tostatutory out-of-home care.

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Schedule 1

[14] Sections 171 and 172Insert “statutory or supported” before “out-of-home care” wherever occurring.


172A Prohibition on parents placing children or young persons in out-of-home care provided by unauthorised organisations

A parent of a child or young person must not cause or permit, ormake arrangements for, the child or young person to be placed inout-of-home care that is provided or arranged by an organisationunless the organisation is a relevant agency within the meaningof section 156.Maximum penalty: 200 penalty units.

1.4 Amendments relating to recommendation 16.16 (ii)–(vii)[1] Section 90 Rescission and variation of care orders

Omit section 90 (3) (b).

[2] Section 90 (3A)Omit “and the Children’s Guardian of the application, and theDirector-General and the Children’s Guardian are entitled to be parties”.Insert instead “of the application, and the Director-General is entitled to be aparty”.

[3] Section 105 Publication of names and identifying informationOmit “Children’s Guardian” from section 105 (3) (b) (iii) wherever occurring.Insert instead “Director-General”.

[4] Section 181 Functions relating to parental responsibilityOmit section 181 (1) (a) and (d).

[5] Section 183 Power of Children’s Guardian to resolve disputesOmit the section.

[6] Section 186 Delegation of functionsOmit section 186 (1). Insert instead:

(1) The Children’s Guardian may delegate to an authorised personany of the functions of the Children’s Guardian, other than thispower of delegation.

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1.5 Amendment relating to recommendations 24.1 and 24.6Chapter 16AInsert after Chapter 16:

Chapter 16A Exchange of information and co-ordination of services

245A Object and principles of Chapter(1) The object of this Chapter is to facilitate the provision of services

to children and young persons by agencies that haveresponsibilities relating to the safety, welfare or well-being ofchildren and young persons:(a) by authorising or requiring those agencies to provide, and

by authorising those agencies to receive, information thatis relevant to the provision of those services, whileprotecting the confidentiality of the information, and

(b) by requiring those agencies to take reasonable steps toco-ordinate the provision of those services with other suchagencies.

(2) The principles underlying this Chapter are as follows:(a) agencies that have responsibilities relating to the safety,

welfare or well-being of children or young persons shouldbe able to provide and receive information that promotesthe safety, welfare or well-being of children or youngpersons,

(b) those agencies should work collaboratively in a way thatrespects each other’s functions and expertise,

(c) each such agency should be able to communicate witheach other agency so as to facilitate the provision ofservices to children and young persons and their families,

(d) because the safety, welfare and well-being of children andyoung persons are paramount:(i) the need to provide services relating to the care and

protection of children and young persons, and(ii) the needs and interests of children and young

persons, and of their families, in receiving thoseservices,

take precedence over the protection of confidentiality or ofan individual’s privacy.

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Schedule 1

245B Interpretation(1) In this Chapter:

prescribed body means any body or organisation specified insection 248 (6) or that is prescribed by the regulations for thepurposes of that section.

(2) A reference in this Chapter to a prescribed body includes areference to the person who is the chief executive officer(however described) of the prescribed body.

(3) A reference in this Chapter to information relating to the safety,welfare or well-being of a child or young person includes areference to information about the following:(a) an unborn child who is the subject of a pre-natal report

under section 25,(b) the family of an unborn child the subject of such a report,(c) the expected date and place of birth of an unborn child the

subject of such a report.

245C Provision of information(1) A prescribed body (the provider) may provide information

relating to the safety, welfare or well-being of a particular childor young person or class of children or young persons to anotherprescribed body (the recipient) if the provider reasonablybelieves that the provision of the information would assist therecipient:(a) to make any decision, assessment or plan or to initiate or

conduct any investigation, or to provide any service,relating to the safety, welfare or well-being of the child oryoung person or class of children or young persons, or

(b) to manage any risk to the child or young person (or classof children or young persons) that might arise in therecipient’s capacity as an employer or designated agency.

(2) Information may be provided under this section regardless ofwhether the provider has been requested to provide theinformation.

245D Request for information(1) A prescribed body (the requesting agency) may request another

prescribed body to provide the requesting agency with anyinformation held by the other body that relates to the safety,welfare or well-being of a particular child or young person orclass of children or young persons.

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(2) Any such request may be made for the purposes of assisting therequesting agency:(a) to make any decision, assessment or plan or to initiate or

conduct any investigation, or to provide any service,relating to the safety, welfare or well-being of the child oryoung person or class of children or young persons, or

(b) to manage any risk to the child or young person (or classof children or young persons) that might arise in theagency’s capacity as an employer or designated agency.

(3) If a prescribed body receives a request under this section, theprescribed body is required to comply with the request if itreasonably believes, after being provided with sufficientinformation by the requesting agency to enable the other body toform that belief, that the information may assist the requestingagency for any purpose referred to in subsection (2).

(4) A prescribed body is not required to provide any information thatit has been requested to provide if the body reasonably believesthat to do so would:(a) prejudice the investigation of a contravention (or possible

contravention) of a law in any particular case, or (b) prejudice a coronial inquest or inquiry, or(c) prejudice any care proceedings, or(d) contravene any legal professional or client legal privilege,

or(e) enable the existence or identity of a confidential source of

information in relation to the enforcement oradministration of a law to be ascertained, or

(f) endanger a person’s life or physical safety, or(g) prejudice the effectiveness of a lawful method or

procedure for preventing, detecting, investigating ordealing with a contravention (or possible contravention) ofa law, or

(h) not be in the public interest.(5) If a prescribed body refuses to provide information in accordance

with a request under this section, the prescribed body must, at thetime it notifies the requesting agency of the refusal, provide therequesting agency with reasons in writing for refusing therequest.

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Schedule 1

245E Co-ordination of servicesPrescribed bodies are, in order to effectively meet theirresponsibilities in relation to the safety, welfare or well-being ofchildren and young persons, required to take reasonable steps toco-ordinate decision-making and the delivery of servicesregarding children and young persons.

245F Restriction on use of information provided under this ChapterIf any information is provided to a prescribed body under thisChapter, the prescribed body must not, except as otherwiserequired or permitted by any law, use or disclose the informationfor any purpose that is not associated with the safety, welfare orwell-being of the child or young person (or class of children oryoung persons) to whom the information relates.

245G Protection from liability for providing information(1) This section applies if a person, acting in good faith, provides any

information in accordance with this Chapter.(2) Any such person is not liable to any civil or criminal action, or

any disciplinary action, for providing the information.(3) In providing the information, the person cannot be held to have

breached any code of professional etiquette or ethics or departedfrom any accepted standards of professional conduct.

245H Interaction with other laws(1) A provision of any other Act or law (whether enacted or made

before or after the commencement of this section) that prohibitsor restricts the disclosure of information does not operate toprevent the provision of information (or affect a duty to provideinformation) under this Chapter.

(2) This Chapter does not limit the operation of Part 3 of Chapter 2or sections 185 and 248.

245I Commonwealth agenciesNothing in this Chapter is to be construed as imposing arequirement on any of the following bodies:(a) the Federal Court of Australia,(b) the Federal Magistrates Court of Australia,(c) Centrelink,(d) the Commonwealth Department of Immigration and

Multicultural and Indigenous Affairs.

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1.6 Other miscellaneous or consequential amendments[1] Section 3 Definitions

Insert in alphabetical order:Children’s Court Clinic means the Children’s Court Clinicreferred to in section 15B of the Children’s Court Act 1987.


19 Interagency co-operation and exchange of informationThe provisions of this Part do not limit the operation of Chapter16A or section 248.

[3] Chapter 3 Request for assistance and reportsOmit the diagrams at the beginning of the Chapter.

[4] Sections 39, 40 and 41Omit the sections.

[5] Section 220 RegulationsOmit section 220 (a) and (a1). Insert instead:

(a) the probity checks that may be made on all persons whoare, or who are proposed to be, engaged in the operation ormanagement of a children’s service (or a proposedchildren’s service), other than those persons who areemployed in child-related employment within the meaningof section 33 of the Commission for Children and YoungPeople Act 1998,

[6] Schedule 3 Savings, transitional and other provisionsInsert at the end of clause 1 (1):

Children Legislation Amendment (Wood InquiryRecommendations) Act 2009, to the extent that it amends this Act

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Amendments relating to recommendations 11.2, 13.1, 13.3, 13.4, 13.9 and 13.12

Schedule 2

Schedule 2 Amendments relating to recommendations 11.2, 13.1, 13.3, 13.4, 13.9 and 13.12

2.1 Amendment of Children and Young Persons (Care and Protection) Act 1998 No 157

[1] Section 45 Application to Children’s Court for care orderOmit “the Director-General must apply to the Children’s Court at the firstavailable opportunity, but no later than the next sitting day of the Children’sCourt after the removal or assumption of care responsibility by theDirector-General,” from section 45 (1).Insert instead “the Director-General must, no later than 72 hours after theremoval or assumption of care responsibility, make a care application in theChildren’s Court”.

[2] Section 61 Applications for care ordersOmit section 61 (2). Insert instead:

(2) A care application must:(a) specify the particular care order sought and the grounds on

which it is sought, and(b) without limiting paragraph (a), be accompanied by a

written report specifying such information as may beprescribed for the purposes of this section by the rulesmade under the Children’s Court Act 1987.

[3] Section 107 Examination and cross-examination of witnessesOmit “an authorised Magistrate within the meaning of the Children’s CourtAct 1987” from section 107 (4).Insert instead “the President of the Children’s Court”.

[4] Section 109 DefinitionsInsert at the end of the section:

(2) In this Part, a reference to a Children’s Magistrate includes areference to the President of the Children’s Court.

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2.2 Amendment of Children’s Court Act 1987 No 53[1] Section 3 Definitions

Omit the definition of Senior Children’s Magistrate in section 3 (1).Insert instead in alphabetical order:

President means the person appointed under section 6A as thePresident of the Children’s Court.

[2] Sections 6, 6A and 6BOmit section 6. Insert instead:

6 Composition of the CourtThe Court is composed of the President and such Children’sMagistrates as are appointed under this Act.

6A President of Children’s Court(1) The Governor may, by commission under the public seal of the

State, appoint a qualified person as the President of theChildren’s Court.

(2) A person is qualified to be appointed as the President only if theperson holds office as a Judge of the District Court.

(3) Subject to this section, the President holds office for such term(not exceeding 5 years) as is specified in his or her instrument ofappointment.

(4) The appointment of a person as the President does not affect:(a) the person’s tenure as a Judge of the District Court, or(b) the person’s rank, title, status, remuneration or other rights

or privileges as a Judge of the District Court.(5) Service in the office of the President is, for all purposes, taken to

be service in the office of Judge of the District Court.(6) A person is taken to have vacated office as the President if the

person:(a) ceases to be a Judge of the District Court, or(b) resigns office by instrument in writing addressed to the

Governor.(7) A person does not cease to be a Judge of the District Court merely

because of:(a) his or her resignation from office as the President, or

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(b) the expiration of his or her term of office as the President.(8) Despite anything to the contrary in this section, a person

appointed as the President is not to exercise the jurisdiction of theDistrict Court while holding office as the President (except, withthe approval of the Chief Judge of the District Court, in respectof a matter that was being dealt with by the person immediatelybefore being appointed as the President).

6B Acting President of Children’s Court(1) The Governor may, by instrument in writing, appoint a

Children’s Magistrate to be the Acting President:(a) during any vacancy in the office of the President, or(b) during any period for which the President is absent from

duty.(2) While acting as the President, the person appointed as the Acting

President:(a) has and may exercise the functions of the President, and(b) is entitled to be paid the same remuneration as the

President.(3) However, service in the office of the Acting President is not taken

to be service in the office of Judge of the District Court.

[3] Section 7 Appointment of Children’s MagistratesInsert after section 7 (1):

(1A) Any such appointment may only be made in consultation with thePresident.

[4] Section 7 (2) (b)Omit the paragraph. Insert instead:

(b) has, in the opinion of the Chief Magistrate and thePresident, such knowledge, qualifications, skills andexperience in the law and the social or behaviouralsciences, and in dealing with children and young peopleand their families, as the Chief Magistrate and Presidenteach consider necessary to enable the person to exercisethe functions of a Children’s Magistrate.

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[5] Section 7 (2A)Omit “Chief Magistrate may, in consultation with the Senior Children’sMagistrate”.Insert instead “President may, in consultation with the Chief Magistrate”.

[6] Sections 8, 9 and 17Omit the sections.

[7] Section 10A Children’s RegistrarsInsert after section 10A (1):

(1A) A person cannot be employed as a Children’s Registrar unless theperson is an Australian lawyer.


13 Single member to exercise jurisdiction of the CourtThe jurisdiction of the Court may be exercised:(a) by the President, or(b) by a Children’s Magistrate,sitting alone.

[9] Sections 15A (2), 18 and 22 (a)Omit “Senior Children’s Magistrate” wherever occurring.Insert instead “President”.

[10] Section 15B Children’s Court ClinicOmit “Attorney General” from section 15B (1).Insert instead “Minister for Health”.


16 Functions of the President(1) The President has the following functions:

(a) to administer the Court,(b) to arrange sittings of the Court,

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Schedule 2

(c) to convene, at least once every 6 months, a meeting ofChildren’s Magistrates and such other persons as thePresident thinks fit,

(d) to confer regularly with community groups and socialagencies on matters involving children and the Court,

(e) to provide judicial leadership to the Court,(f) to develop recommendations for rules,(g) to oversee the training of Children’s Magistrates and

prospective Children’s Magistrates in accordance with therules.

(2) The President may also exercise any of the functions that areconferred or imposed on a Children’s Magistrate under this orany other Act.

(3) The President may require specified functions of Children’sMagistrates to be exercised by specified Children’s Magistratesor Children’s Magistrates of a specified class, and any Children’sMagistrate of whom a requirement is made under this subsectionmust comply with the requirement.

(4) The President may delegate to a Children’s Magistrate any of thePresident’s functions under this section, other than this power ofdelegation.


22A Appeals in relation to decisions of Presidential Children’s Court(1) In this section:

appeal includes the referral of any matter.decision includes any order or judgment.Presidential Children’s Court means the Children’s Courtconstituted by the President.

(2) An appeal to the District Court under any Act or other law inrelation to a decision of the Presidential Children’s Court is,despite the provisions of that Act or law, taken to be an appeal tothe Supreme Court.

(3) Subsection (2) has effect only to the extent provided by theregulations.

(4) For the purposes of subsection (2), the provisions of any Act orlaw relating to appeals are subject to such modifications as maybe prescribed by the regulations.

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(5) The Governor may make regulations for the purposes of thissection.

[13] Sections 23A and 23BInsert after section 23:

23A Practice notes (1) Subject to the rules, the President may issue practice notes in

relation to any matter with respect to which rules may be made.(2) A practice note issued under this section:

(a) must be published in the Gazette, and(b) takes effect on the day on which it is published in the

Gazette or, if a later day or days are specified in thepractice note for that purpose, on the later day or days sospecified.

(3) A practice note issued under this section may be amended orrepealed by a further practice note issued under this section.

(4) Subject to subsection (5), sections 40 and 41 of the InterpretationAct 1987 apply to a practice note issued under this section in thesame way as they apply to a statutory rule.

(5) For the purpose of applying section 40 of the Interpretation Act1987 to a practice note issued under this section, a reference inthat section to the publication of a statutory rule is to be read as areference to the publication of the practice note as provided bysubsection (2).

23B Court may give directions in circumstances not covered by rules or practice notes(1) In relation to particular proceedings, the Court may, in respect of

any matter for which the rules or practice notes do not makeprovision, give directions that the Court considers appropriate inconnection with the practice and procedure to be followed inrelation to that matter.

(2) Any such direction has no effect to the extent that it isinconsistent with any provision of the Children and YoungPersons (Care and Protection) Act 1998 relating to proceedingsbefore the Court.

(3) Anything done in accordance with a direction under this section(including the commencing of proceedings and the taking of anystep in proceedings) is taken to have been validly done.

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Schedule 2

[14] Schedule 1 Provisions relating to Children’s MagistratesInsert “and to the President” after “Chief Magistrate” in clause 5 (b).

[15] Schedule 2 Savings and transitional provisionsInsert at the end of clause 1 (1):


[16] Schedule 2, Part 3Insert after Part 2:

Part 3 Provisions consequent on enactment of Children Legislation Amendment (Wood Inquiry Recommendations) Act 2009

6 DefinitionIn this Part:amending Act means the Children Legislation Amendment(Wood Inquiry Recommendations) Act 2009.

7 Provisions relating to abolished office of Senior Children’s Magistrate(1) In accordance with section 56 (2) of the Constitution Act 1902,

the person who, immediately before the repeal of section 8 of thisAct by the amending Act, held office as Senior Children’sMagistrate is entitled (without loss of remuneration) to holdoffice as a Magistrate or Children’s Magistrate for the remainderof the term for which the person was appointed as SeniorChildren’s Magistrate.

(2) A reference to the Senior Children’s Magistrate in any other Act(other than the Constitution Act 1902) or statutory instrument isto be construed as a reference to the President.

8 Provisions relating to Children’s Court ClinicThe regulations made under clause 1 (1) may make provision foror with respect to:(a) transferring the staff of the Children’s Court Clinic, and

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(b) requiring references to the Children’s Court Clinic in thisor any other Act or statutory instrument, or any otherinstrument, or any contract or agreement, to be construedas a reference,

to such public sector agency (or part of a public sector agency) asmay be prescribed by the regulations.

2.3 Amendment of Constitution Act 1902 No 32Section 52 Definition and applicationInsert “or President of the Children’s Court” after “District Court” inparagraph (d) of the definition of judicial office in section 52 (1).

2.4 Amendment of Judicial Officers Act 1986 No 100[1] Section 3 Definitions

Insert after paragraph (d) of the definition of judicial officer in section 3 (1):(e) the President of the Children’s Court,

[2] Section 43 Appropriate authorities to suspend etcInsert “, the President of the Children’s Court” after “member of theCommission”.

2.5 Amendment of Statutory and Other Offices Remuneration Act 1975 (1976 No 4)

[1] Schedule 1 Public officesInsert after the matter relating to the office of Judge of the District Court:

President of the Children’s Court

[2] Schedule 1Omit “the Senior Children’s Magistrate,” from the matter relating to the officeof Magistrate.

[3] Schedule 1Omit the matter relating to the office of Senior Children’s Magistrate.

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Schedule 2

2.6 Amendment of Children’s Court Rule 2000[1] Clauses 10 (b) and (c), 11, 18A, 30 (3) and 37 (1) (a) and (c) (i)

Omit “Senior Children’s Magistrate” wherever occurring.Insert instead “President”.

[2] Clause 17 Practice directions of the CourtOmit the clause.

[3] Clause 21Omit the clause. Insert instead:

21 Report to accompany care applicationsFor the purposes of section 61 (2) of the Children and YoungPersons (Care and Protection) Act 1998, the report that isrequired to accompany a care application must:(a) provide a summary of the facts, matters and circumstances

on which the applicant intends to rely, and(b) state whether or not the child or young person to whom the

application relates is currently the subject of an order madeby:(i) the Court in the exercise of its jurisdiction under the

Children and Young Persons (Care and Protection)Act 1998, or

(ii) any other Court in the exercise of its jurisdictionwith respect to the custody or guardianship ofchildren or parental responsibility for children.

[4] Clause 33 Composition of Children’s Court ClinicOmit “Attorney General” wherever occurring.Insert instead “Minister for Health”.

[5] Clause 40 DeputiesOmit “, or the deputy of the Director of the Children’s Court Clinic” fromclause 40 (1).

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Schedule 3 Amendments relating to recommendations 23.3, 23.4 and 23.8


3.1 Amendment of Commission for Children and Young People Act 1998 No 146

[1] Section 11 Principal functions of CommissionOmit “for child-related employment” from section 11 (i).Insert instead “under and”.

[2] Section 11 (k)Omit the paragraph.

[3] Sections 15 (1) and 15A (1)Omit “(other than its functions under section 11 (k))” wherever occurring.

[4] Section 31 Object of PartOmit “for child-related employment” from section 31 (b).

[5] Section 33 DefinitionsInsert after paragraph (a) of the definition of child-related employment insection 33 (1):

(a1) means (without limiting paragraph (a)) any employment ofthe following kind:(i) employment comprising the provision of a

prescribed children’s service,(ii) employment as a person involved in the control or

management of a prescribed children’s service,(iii) employment as an authorised supervisor (within the

meaning of section 199 of the Children and YoungPersons (Care and Protection) Act 1998 in relationto a prescribed children’s service,

(iv) employment as an assessment officer within themeaning of section 27A of the Children and YoungPersons (Care and Protection) Act 1998,

(v) employment as the principal officer of a designatedagency within the meaning of the Children andYoung Persons (Care and Protection) Act 1998,

(vi) employment as the principal officer of an accreditedadoption service provider within the meaning of theAdoption Act 2000,

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Amendments relating to recommendations 23.3, 23.4 and 23.8 Schedule 3

(vii) employment as a self-employed person or as asubcontractor (by or on behalf of or in a relevantagency) if that employment involves direct contactwith children and the contact is not directlysupervised by a person having capacity to direct theself-employed person or subcontractor in the courseof his or her work, and

[6] Section 33 (1), definition of “employer”Insert at the end of paragraph (b):

, or(c) in the case of employment comprising the provision of a

prescribed children’s service or the performance of workas a person involved in the control or management of aprescribed children’s service—the Director-General of theDepartment of Community Services.

[7] Section 33 (1), definition of “employment”Insert at the end of paragraph (f):

, or(g) providing a prescribed children’s service, or(h) performance of work as a person involved in the control or

management of a prescribed children’s service.

[8] Section 33 (1)Insert in alphabetical order:

prescribed children’s service has the same meaning as in section199 of the Children and Young Persons (Care and Protection)Act 1998.relevant agency means any of the following:(a) the Department of Community Services,(b) the Department of Education and Training,(c) the TAFE Commission Division (including the TAFE

Commission),(d) any other agency or organisation prescribed by the

regulations for the purposes of this definition.Note. This definition is relevant for the purposes of paragraph (a1) (vii)of the definition of child-related employment.

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[9] Section 37 Background checking mandatory for preferred applicants for certain child-related employmentInsert after paragraph (c) of the definition of primary child-relatedemployment in section 37 (6):

(c1) child-related employment of a student that involvesworking in the Department of Community Services, or

(c2) child-related employment of a volunteer that involves thementoring of disadvantaged children, or

(c3) child-related employment of a volunteer that involves theprovision of personal care services to children withdisabilities, but only if the work involves an intimate levelof contact with those children (such as assistance withbathing, dressing or toileting), or

[10] Section 45Insert after section 44:

45 Application of background checking provisions to adult persons residing with authorised carers or children’s service providers(1) In this section:

applied provisions means the background checking provisionsthat are, because of subsection (2), taken to apply to and inrespect of a relevant person who resides at the home of anauthorised carer or children’s service provider.authorised carer and designated agency have the same meaningsas in the Children and Young Persons (Care and Protection) Act1998.background checking provisions means the provisions of thisDivision (including the provisions of section 33 in theirapplication to this Division) that relate to background checkingfor child-related employment.children’s service provider means:(a) in the case of a family day care children’s service licensed

under the Children and Young Persons (Care andProtection) Act 1998—the person who is the family daycare carer under that Act for the service, or

(b) in the case of a home based children’s service licensedunder that Act—the person who is the licensee under thatAct for the service.

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relevant person means a person (other than an authorised carer orchildren’s service provider) who is of or above the age of18 years.

(2) The background checking provisions apply to and in respect of arelevant person who resides at the home of an authorised carer orchildren’s service provider in the same way as those provisionsapply to and in respect of background checking for child-relatedemployment, with:(a) subject to paragraph (b), such adaptations as may be

necessary, and(b) such exclusions and modifications as may be prescribed by

the regulations.(3) For the purposes of this section, a relevant person is taken to

reside at the home of an authorised carer or children’s serviceprovider if:(a) that home is the place at which the authorised carer or

licensed service provides the foster care or the children’sservice concerned, and

(b) the person has been living at that home on a regular basisfor a period of not less than 3 months.

(4) Without limiting subsection (2), the following provisions haveeffect in relation to the operation of the applied provisions:(a) a reference to an employer is taken to be a reference to:

(i) in the case of a relevant person who resides at thehome of an authorised carer—the designated agencythat authorises the carer, or

(ii) in the case of a relevant person who resides at thehome of a children’s service provider—the licenseeof the children’s service concerned,

(b) a reference to a person who is employed or who is anapplicant for employment is taken to be a reference to therelevant person who resides at the home of the authorisedcarer or children’s service provider (as the case requires),

(c) it is the duty under section 37 of the designated agency orthe licensee of the children’s service (as the relevantemployer) to carry out all the relevant procedures ofbackground checking of the relevant person to determinewhether it is appropriate for that person to reside at thehome of the authorised carer or children’s service providerconcerned.

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[11] Section 45BOmit the section. Insert instead:

45B Establishment of the TeamThe Child Death Review Team is established by this Act.

[12] Section 45C Composition of the TeamOmit section 45C (1). Insert instead:

(1) The Team is to consist of the following members:(a) the Ombudsman, who is to be the Convenor of the Team,(b) the Commissioner,(c) such other persons as may be appointed by the Minister.

(1A) The Team is to be supported and assisted in the exercise of itsfunctions by members of staff of the Ombudsman’s Office.

[13] Sections 45C (6)Insert “and the Commissioner” after “the Convenor” wherever occurring.

[14] Sections 45E, 45G and 45HInsert “or the Commissioner” after “the Convenor” wherever occurring.

[15] Section 45F RemunerationInsert “, the Commissioner” after “the Convenor”.

[16] Section 45N Functions of the TeamOmit section 45N (3).

[17] Section 45S Preparation and presentation of reportsOmit “or as part of a report of the Commission under Part 5” fromsection 45S (3).

[18] Section 45U Confidentiality of informationOmit section 45U (1) (c) (iv).

[19] Schedule 3 Savings, transitional and other provisionsInsert at the end of clause 1 (1):


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3.2 Amendment of Community Services (Complaints, Reviews and Monitoring) Act 1993 No 2


8A Provision of information to Children’s Guardian(1) An Official Community Visitor is required to provide to the

Children’s Guardian, and the Children’s Guardian is authorisedto collect and use, any information obtained by the OfficialCommunity Visitor under section 8 that is of a class specified bythe Children’s Guardian (and notified to the Visitor) as beinginformation that is relevant to the exercise of the functions of theChildren’s Guardian in connection with the accreditation of anorganisation or government department as a designated agencyunder the Children and Young Persons (Care and Protection) Act1998.

(2) A provision of any other Act or law that prohibits or restricts thedisclosure of information does not operate to prevent theprovision of information (or affect a duty to provide information)under this section.

[2] Section 35 Application of PartOmit section 35 (1) (b) and (c).

[3] Section 43 ReportsOmit section 43 (1). Insert instead:

(1) The Ombudsman must prepare a report every 2 years on theOmbudsman’s work and activities under this Part for thepreceding 2 years. The first such biennial report is to be preparedin respect of the 2-year period ending on 30 June 2010.

(1A) Each report under subsection (1) must be provided to thePresiding Officer of each House of Parliament as soon aspracticable after 30 June.

[4] Section 43 (2) (a)Omit “previous calendar year”. Insert instead “reporting period”.

[5] Section 43 (4)Omit “an annual report under this section”.Insert instead “a report under subsection (1)”.

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3.3 Amendment of Children and Young Persons (Care and Protection) Act 1998 No 157

[1] Section 137 Authorised carersInsert after section 137 (2):

(3) In the case of an authorised carer who is authorised by adesignated agency, it is a condition of the authorisation that thecarer must notify the designated agency if any person (other thanthe carer) who is of or above the age of 18 years is residing at thecarer’s home on a regular basis and has been doing so for a periodof at least 3 months.Note. See section 45 of the Commission for Children and Young PeopleAct 1998 which provides for background checking under Division 3 ofPart 7 of that Act of adult household members of authorised carers.

(4) Without limiting subsection (3), any such requirement to notifythe designated agency applies even though the adult person whois residing at the carer’s home was at any time residing at thathome as a minor.

[2] Section 209 Conditions of licencesInsert at the end of the section:

(2) It is a condition of a licence for a family day care children’sservice or a home based children’s service that the licensee mustnotify the Director-General if any person (other than the licensee)who is of or above the age of 18 years is residing at the licensee’shome on a regular basis and has been doing so for a period of atleast 3 months.Note. See section 45 of the Commission for Children and Young PeopleAct 1998 which provides for background checks (under Division 3 of Part7 of that Act) to be carried out in relation to adult household members ofchildren’s service providers.

(3) Without limiting subsection (2), any such requirement to notifythe Director-General applies even though the adult person who isresiding at the licensee’s home was at any time residing at thathome as a minor.

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3.4 Amendment of Children’s Services Regulation 2004Clauses 117, 119–121 and 122FOmit the clauses.

[Agreement in principle speech made in Legislative Assembly on 5 March 2009

Second reading speech made in Legislative Council on 1 April 2009]

BY AUTHORITY

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